Citation Nr: 1125046
Decision Date: 07/01/11 Archive Date: 07/14/11
DOCKET NO. 07-39 154 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for a back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A.J. Turnipseed, Counsel
INTRODUCTION
The Veteran served on active duty from March 1962 to June 1963.
This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above, which denied entitlement to service connection for several disabilities, including the back disability currently on appeal.
The Veteran submitted a timely notice of disagreement (NOD) as to each issue addressed in the January 2007 rating decision; however, in his December 2007 substantive appeal, submitted via VA Form 9, the Veteran indicated that he wished to only appeal the issue involving his back disability. Accordingly, the Board finds that the Veteran perfected his appeal as to that issue only, which will be the only issue addressed in the decision herein.
FINDING OF FACT
The most competent, credible, and probative evidence of record preponderates against a finding that the Veteran currently has a low back disability that is due to any incident or event in military service.
CONCLUSION OF LAW
A low back disability was not incurred or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
The Veteran is seeking service connection for a back disability on the basis that he suffered from back pain during military service.
The Veteran is competent to report what symptoms he suffered from during service and his report of in-service back pain is also considered credible, given that the service treatment records (STRs) corroborate his report. Indeed, the STRs reflect that, in March 1963, the Veteran sought treatment for complaints of pain in the small of his back which had persisted for three to four months. The Veteran could not recall a traumatic episode leading to his back pain and physical examination was negative. As a result, the impression was questionable low back syndrome.
The Board finds probative that the STRs do not contain any additional or subsequent complaints, treatment, or findings related to the Veteran's low back. In this regard, the Board finds highly probative that the Veteran did not lodge any pertinent complaints regarding his low back at his June 1963 separation examination and that physical examination of his spine was also normal at that time.
In evaluating this claim, the Board also finds probative that there is no lay or medical evidence showing that the Veteran continued to suffer from low back pain following service. In this context, the Board notes that the Veteran's representative has asserted that the Veteran has reported suffering from a low back condition since service. See February 2008 Statement of Accredited Representative in lieu of VA Form 646. However, the representative's assertion is not considered correct because it is not supported by the evidence of record. The evidentiary record does not contain any statement submitted by the Veteran which indicates that he has suffered from low back pain since service.
In fact, the Veteran has specifically asserted that his low back disability began in 1973. See September 2006 VA Form 21-526.
In addition, the Board finds the medical evidence of record does not contain any indication that the Veteran's current back disability has persisted since military service. In this regard, a decision from the Social Security Administration (SSA), dated September 1991, reflects that there was evidence showing the Veteran had spondylolisthesis, L5-S1, and cervical strain which arose from his involvement in a motor vehicle accident in March 1973 and required that he undergo surgical treatment. While the evidence supporting the SSA decision is unable to be located and is, thus, not associated with the claims file, the Board finds that the SSA decision (which was based on medical evidence compiled by SSA) is competent, credible, and probative as to the onset and development of the Veteran's low back disability.
In addition, the other medical evidence of record supports the findings in the SSA decision, as it shows that the Veteran sought to establish care with the VA medical system in February 2006 and reported having back surgery 30 years prior at that time.
Indeed, in evaluating this claim, the Board finds highly probative that the medical evidence of record does not contain any indication from the Veteran, his treating physicians, or the clinical findings that the Veteran's current back problem had its onset in military service, is otherwise related thereto, or persisted since that time. See VA outpatient treatment records dated from 2006 to 2007; see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value as statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).
Therefore, the Board finds there is no competent and credible lay or medical evidence of record showing continuity of symptomatology following service.
The Board also finds there is no medical evidence showing that the Veteran's current low back disability is related to his military service. As noted, while the VA outpatient treatment records reflect that the Veteran possibly has lumbar degenerative disc disease, which results in back pain that radiates into his right hip and leg, the VA treatment records do not relate the Veteran's current back disability to his military service, which is evidence against his claim. The Board also notes, again, that the September 1991 SSA decision reflects that the Veteran's diagnosis of spondylolisthesis, L5-S1, and cervical strain was related to his involvement in a motor vehicle accident that occurred in March 1973, approximately 10 years after he separated from service. The Board notes that, had the evidence shown that the Veteran suffered from back symptoms during service or related thereto, the SSA decision would have likely reflected such and, as a result, the Board finds that the SSA decision is evidence highly probative as to the etiology of the Veteran's current back disability and is evidence against the Veteran's claim of service incurrence.
The Veteran has not been afforded a VA examination and/or opinion in conjunction with this claim. However, the Board finds a VA examination is not needed in this case because, while there is evidence of a current disability and evidence of complaints of low back pain during service, there is no evidence that indicates that the current low back disability may be associated with the Veteran's in-service complaints of low back pain. Indeed, as noted, there is no credible evidence of continuity of symptomatology since service and there is no medical evidence suggesting a nexus between the current disability and service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, and most importantly, there is significant evidence in the record against this claim, clearly indicating a back problem that began years after service, notwithstanding any other evidence of record. A VA medical opinion from 2011 will not provide a basis to grant this claim. The facts of this case provide overwhelming factual evidence against this claim.
Therefore, based on the foregoing reasons and bases, the Board finds the preponderance of the evidence is against the grant of service connection for a low back disability and the benefit-of-the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159, 3.326(a) (2010).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006).
The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).
In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2006 that fully addressed all required notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter also informed him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran.
The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained the Veteran's service treatment records and all post-service treatment records identified by the Veteran and the record. In this regard, the Board notes that VA attempted to obtain the Veteran's records from SSA but SSA responded that records could not be located. See February 2008 response from SSA and March 2008 File Memorandum. In sum, it appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Entitlement to service connection for a back disability is denied.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs